CUSTODIAN AGREEMENT
Exhibit
10 under Item 601/Reg. S-K
THIS AGREEMENT is made as of the
26th day
of May, 2009 between THE
HUNTINGTON FUNDS (the “Trust”), a Delaware statutory trust, on behalf of
its portfolios (hereinafter collectively called the “Funds” and individually
referred to as a “Fund”), and THE HUNTINGTON NATIONAL BANK,
a national banking association (hereinafter called the
“Custodian”).
WITNESSETH: That in
consideration of the mutual covenants and agreements hereinafter contained, the
parties hereto agree as follows:
1. Employment
of Custodian and Property to be Held by It
The Trust hereby employs the Custodian
as the custodian of the assets of each of the Funds of the Trust as listed on
Appendix B. Except as otherwise expressly provided
herein, the securities and other assets of each of the Funds shall be segregated
from the assets of each of the other Funds and from all other persons and
entities. The Trust will deliver to the Custodian all securities and
cash owned by the Funds and all payments of income, payments of principal or
capital distributions received by them with respect to all securities owned by
the Funds from time to time, and the cash consideration received by them for
shares of beneficial interest (“Shares”) of the Funds as may be issued or sold
from time to time. The Custodian shall not be responsible for any
property of the Funds held or received by the Funds and not delivered to the
Custodian. By the execution of the 17F-5 Delegation Schedule set
forth in Appendix E, the Trust designates the Custodian as its delegate to
perform certain functions with respect to the custody of the Funds’ Foreign
Assets (as defined in Appendix E) outside of the United States.
Upon receipt of “Proper Instructions”
(within the meaning of Section 2.18), the Custodian may from time to time employ
one or more sub-custodians upon the terms specified in the Proper Instructions,
subject to the provisions of Section 2.11.
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2.
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Duties
of the Custodian With Respect to Property of the Funds Held by the
Custodian in the United States
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2.1
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Holding
Securities. The Custodian (and any sub-custodian
appointed pursuant to Section 2.11 hereof) shall hold and physically
segregate for the account of each Fund all non-cash property, including
all securities owned by each Fund, other than securities which are
maintained pursuant to Section 2.12 in a Securities System (as defined in
Section 2.12), or securities which are subject to a joint repurchase
agreement with affiliated funds pursuant to Section 2.14. The
Custodian shall maintain records of all receipts, deliveries and locations
of such securities, together with a current inventory thereof, and shall
conduct periodic physical inspections of certificates representing stocks,
bonds and other securities held by it under this Agreement in such manner
as the Custodian shall determine from time to time to be advisable in
order to verify the accuracy of such inventory. With respect to
securities held by any sub-custodian appointed pursuant to Section 2.11
hereof, the Custodian may rely upon certificates from such sub-custodian
as to holdings of such sub-custodian, it being understood that such
reliance in no way relieves the Custodian of its responsibilities under
this Agreement. The Custodian will promptly report to the Trust
the results of such inspections, indicating any shortages or discrepancies
uncovered thereby, and take appropriate action to remedy any such
shortages or discrepancies.
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2.2
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Delivery of
Securities. The Custodian (or any sub-custodian) shall
release and deliver securities owned by a Fund held by the Custodian or in
a Securities System account of the Custodian only upon receipt of Proper
Instructions, which may be continuing instructions when deemed appropriate
by the parties, and only in the following
cases:
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(1)
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Upon
sale of such securities for the account of a Fund and receipt of payment
therefor;
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(2)
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Upon
the receipt of payment in connection with any repurchase agreement related
to such securities entered into by the
Trust;
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(3)
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In
the case of a sale effected through a Securities System, in accordance
with the provisions of Section 2.12
hereof;
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(4)
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To
the depository agent in connection with tender or other similar offers for
portfolio securities of a Fund, in accordance with the provisions of
Section 2.17 hereof;
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(5)
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To
the issuer thereof or its agent when such securities are called, redeemed,
retired or otherwise become payable; provided that, in any such case, the
cash or other consideration is to be delivered to the
Custodian;
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(6)
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To
the issuer thereof, or its agent, for transfer into the name of a Fund or
into the name of any nominee or nominees of the Custodian or into the name
or nominee name of any sub-custodian appointed pursuant to Section 2.11;
or for exchange for a different number of bonds, certificates or other
evidence representing the same aggregate face amount or number of units;
provided that, in any such case, the new securities are to be delivered to
the Custodian;
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(7)
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Upon
the sale of such securities for the account of a Fund, to the broker or
its clearing agent, against a receipt, for examination in accordance with
“street delivery custom”; provided that in any such case, the Custodian
shall have no responsibility or liability for any loss arising from the
delivery of such securities prior to receiving payment for such securities
except as may arise from the Custodian’s own failure to act in accordance
with the standard of reasonable care or any higher standard of care
imposed upon the Custodian by any applicable law or regulation if such
above-stated standard of reasonable care were not part of this
Agreement;
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(8)
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For
exchange or conversion pursuant to any plan of merger, consolidation,
recapitalization, reorganization or readjustment of the securities of the
issuer of such securities, or pursuant to provisions for conversion
contained in such securities, or pursuant to any deposit agreement;
provided that, in any such case, the new securities and cash, if any, are
to be delivered to the Custodian;
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(9)
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In
the case of warrants, rights or similar securities, the surrender thereof
in the exercise of such warrants, rights or similar securities or the
surrender of interim receipts or temporary securities for definitive
securities; provided that, in any such case, the new securities and cash,
if any, are to be delivered to the
Custodian;
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(10)
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For
delivery in connection with any loans of portfolio securities of a Fund,
but only
against receipt of adequate collateral in the form of (a) cash, in an
amount specified by the Trust, (b) certificated securities of a
description specified by the Trust, registered in the name of the Fund or
in the name of a nominee of the Custodian referred to in Section 2.3
hereof or in proper form for transfer, or (c) securities of a description
specified by the Trust, transferred through a Securities System in
accordance with Section 2.12
hereof;
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(11)
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For
delivery as security in connection with any borrowings requiring a pledge
of assets by a Fund, but only
against receipt of amounts borrowed, except that in cases where additional
collateral is required to secure a borrowing already made, further
securities may be released for the
purpose;
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(12)
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For
delivery in accordance with the provisions of any agreement among the
Trust or a Fund, the Custodian and a broker-dealer registered under the
Securities Exchange Act of 1934, as amended, (the “Exchange Act”) and a
member of the Financial Industry Regulatory Authority (“FINRA”), relating
to compliance with the rules of the Options Clearing Corporation and of
any registered national securities exchange, or of any similar
organization or organizations, regarding escrow or other arrangements in
connection with transactions for a
Fund;
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(13)
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For
delivery in accordance with the provisions of any agreement among the
Trust or a Fund, the Custodian, and a Futures Commission Merchant
registered under the Commodity Exchange Act, relating to compliance with
the rules of the Commodity Futures Trading Commission or any similar
organizations, regarding account deposits in connection with transaction
for a Fund;
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(14)
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Upon
receipt of instructions from the transfer agent (“Transfer Agent”) for a
Fund, for delivery to such Transfer Agent or to the holders of shares in
connection with distributions in kind, in satisfaction of requests by
holders of Shares for repurchase or redemption;
and
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(15)
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For
any other proper corporate purpose, but only upon
receipt of, in addition to Proper Instructions, a certified copy of a
resolution of the Trustees of the Trust on behalf of a Fund signed by an
officer of the Trust and certified by its Secretary or an Assistant
Secretary, specifying the securities to be delivered, setting forth the
purpose for which such delivery is to be made, declaring such purpose to
be a proper corporate purpose, and naming the person or persons to whom
delivery of such securities shall be
made.
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2.3
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Registration of
Securities. Securities (other than bearer securities)
shall be registered in the name of a particular Fund or in the name of any
nominee of the Fund or of any nominee of the Custodian which nominee shall
be assigned exclusively to the Fund, unless the
Trust has authorized in writing the appointment of a nominee to be used in
common with other registered investment companies affiliated with the Fund
or in the name or nominee name of any sub-custodian appointed pursuant to
Section 2.11. All securities accepted by the Custodian on
behalf of a Fund under the terms of this Agreement shall be in “street
name” or other good delivery form.
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2.4
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Bank
Accounts. The Custodian shall open and maintain a
separate bank account or accounts in the name of each Fund, subject only
to draft or order by the Custodian acting pursuant to the terms of this
Agreement, and shall hold in such account or accounts, subject to the
provisions hereof, all cash received by it from or for the account of each
Fund, other than cash maintained in a joint repurchase account with other
affiliated funds pursuant to Section 2.14 of this Agreement or by a
particular Fund in a bank account established and used in accordance with
Rule 17f-3 or any successor provision under the Investment Company Act of
1940, as amended, (the “1940 Act”). Funds held by the Custodian
for a Fund may be deposited by it to its credit as Custodian in the
Banking Department of the Custodian or in such other banks or trust
companies as it may in its discretion deem necessary or desirable; provided,
however, that every such bank or trust company shall be qualified to act
as a custodian under the 1940 Act and that each such bank or trust company
and the funds to be deposited with each such bank or trust company shall
be approved by vote of a majority of the Board of Trustees (“Board”) of
the Trust. Such funds shall be deposited by the Custodian in
its capacity as Custodian for the Fund and shall be withdrawable by the
Custodian only in that capacity. If requested by the Trust, the
Custodian shall furnish the Trust, not later than twenty (20) days after
the last business day of each month, an internal reconciliation of the
closing balance as of that day in all accounts described in this section
to the balance shown on the daily cash report for that day rendered to the
Trust.
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2.5
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Payments for
Shares. The Custodian shall make such arrangements with
the Transfer Agent of each Fund as will enable the Custodian to receive
the cash consideration due to each Fund and will deposit into each Fund’s
account such payments as are received from the Transfer
Agent. The Custodian will provide timely notification to the
Trust and the Transfer Agent of any receipt by it of payments for Shares
of the respective Fund.
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2.6.
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Availability of
Federal Funds. Upon mutual agreement between the Trust
and the Custodian, the Custodian shall make federal funds available to the
Funds as of specified times agreed upon from time to time by the Trust and
the Custodian in the amount of checks, clearing house funds, and other
non-federal funds received in payment for Shares of the Funds which are
deposited into the Fund’s accounts.
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2.7
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Collection of
Income
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(1)
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The
Custodian shall collect on a timely basis all income and other payments
with respect to registered securities held hereunder to which each Fund
shall be entitled either by law or pursuant to custom in the securities
business, and shall collect on a timely basis all income and other
payments with respect to bearer securities if, on the date of payment by
the issuer, such securities are held by the Custodian or its agent thereof
and shall credit such income, as collected, to each Fund’s custodian
account. Without limiting the generality of the foregoing, the
Custodian shall detach and present for payment all coupons and other
income items requiring presentation as and when they become due and shall
collect interest when due on securities held hereunder. The
collection of income due the Funds on securities loaned pursuant to
provisions of Section 2.2(10) shall be the responsibility of the
Trust. The Custodian will have no duty or responsibility in
connection therewith, other than to provide the Trust with such
information or data as may be necessary to assist the Trust in arranging
for the timely delivery to the Custodian of the income to which each Fund
is properly entitled.
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(2)
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The
Trust shall promptly notify the Custodian whenever income due on
securities is not collected in due course and will provide the Custodian
with monthly reports of the status of past due income. The
Trust will furnish the Custodian with a weekly report of accrued/past due
income for the Fund. Once an item is identified as past due and
the Trust has furnished the necessary claim documentation to the
Custodian, the Custodian will then initiate a claim on behalf of the
Trust. The Custodian will furnish the Trust with a status
report monthly unless the parties otherwise
agree.
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2.8
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Payment of Fund
Moneys. Upon receipt of Proper Instructions, which may
be continuing instructions when deemed appropriate by the parties, the
Custodian shall pay out moneys of each Fund in the following cases
only:
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(1)
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Upon
the purchase of securities, futures contracts or options on futures
contracts for the account of a Fund but only (a) against the delivery of
such securities, or evidence of title to futures contracts to the
Custodian (or any bank, banking firm or trust company doing business in
the United States or abroad which is qualified under the 1940 Act to act
as a custodian and has been designated by the Custodian as its
sub-custodian for this purpose pursuant to Section 2.11 hereof) registered
in the name of the Fund or in the name of a nominee of the Custodian
referred to in Section 2.3 hereof or in proper form for transfer, (b) in
the case of a purchase effected through a Securities System, in accordance
with the conditions set forth in Section 2.12 hereof or (c) in the case of
repurchase agreements entered into between the Trust and any other party,
(i) against delivery of the securities either in certificate form or
through an entry crediting the Custodian’s account at the Federal Reserve
Bank with such securities or (ii) against delivery of the receipt
evidencing purchase for the account of the Fund of securities owned by the
Custodian along with written evidence of the agreement by the Custodian to
repurchase such securities from the
Fund;
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(2)
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In
connection with conversion, exchange or surrender of securities owned by a
Fund as set forth in Section 2.2(8) and 2.2(9)
hereof;
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(3)
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For
the redemption or repurchase of Shares of a Fund issued by the Trust as
set forth in Section 2.10 hereof;
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(4)
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For
the payment of any expense or liability incurred by a Fund, including but
not limited to the following payments for the account of the
Fund: interest; taxes; management, accounting, transfer agent
and legal fees; and operating expenses of the Fund, whether or not such
expenses are to be in whole or in part capitalized or treated as deferred
expenses;
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(5)
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For
the payment of any dividends on Shares of a Fund declared pursuant to the
governing documents of the Trust;
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(6)
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For
payment of the amount of dividends received in respect of securities sold
short;
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(7)
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For
the purchase or sale of foreign exchange contracts for the Funds,
including transactions executed with or through the Custodian, any
sub-custodian appointed pursuant to Section 2.11, or any Foreign
Sub-Custodian; or
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(8)
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For
any other proper purpose, but only upon
receipt of, in addition to Proper Instructions, a certified copy of a
resolution of the Board of Trustees of the Trust on behalf of a Fund
signed by an officer of the Trust and certified by its Secretary or an
Assistant Secretary, specifying the amount of such payment, setting forth
the purpose for which such payment is to be made, declaring such purpose
to be a proper purpose, and naming the person or persons to whom such
payment is to be made.
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2.9
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Liability for Payment
in Advance of Receipt of Securities Purchased. In any
and every case where payment for purchase of securities for the account of
a Fund is made by the Custodian in advance of receipt of the securities
purchased, in the absence of specific written instructions from the Trust
to so pay in advance, the Custodian shall be absolutely liable to the Fund
for such securities to the same extent as if the securities had been
received by the Custodian.
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2.10
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Payments for
Repurchases or Redemptions of Shares of a Fund. From
such funds as may be available for the purpose of repurchasing or
redeeming Shares of a Fund, but subject to the limitations of any Proper
Instructions, the Custodian shall, upon receipt of instructions from the
Transfer Agent, make funds available for payment to holders of Shares of
such Fund who have delivered to the Transfer Agent a request for
redemption or repurchase of their Shares including without limitation
through bank drafts, automated clearinghouse facilities, or by other
means. In connection with the redemption or repurchase of
Shares of the Funds, the Custodian is authorized upon receipt of
instructions from the Transfer Agent to wire funds to or through a
commercial bank designated by the redeeming
shareholders.
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2.11
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Appointment of
Sub-Custodians. The Custodian may at any time or times
in its discretion appoint (and may at any time remove) any other bank or
trust company which is itself qualified under the 1940 Act and any
applicable state law or regulation, to act as a sub-custodian, as its
agent to carry out such of the provisions of this Agreement as the
Custodian may from time to time direct; provided,
however, that (i) the appointment of any agent shall not relieve the
Custodian of its responsibilities or liabilities hereunder; and (ii) the
Custodian understand and agrees that neither the Trust nor any Fund has
any liability for the payment of any sub-custodian’s fee, and that fees
owed to sub-custodians shall be the sole responsibility of the
Custodian.
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2.12
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Deposit of Fund Assets
in Securities System. The Custodian may deposit and/or
maintain securities owned by the Funds in a clearing agency registered
with the Securities and Exchange Commission (“SEC”) under Section 17A or
any successor provision of the Exchange Act, which acts as a securities
depository, or in the book-entry system authorized by the U.S. Department
of the Treasury and certain federal agencies, each referred to herein as
“Securities System,” in accordance with applicable Federal Reserve Board
and SEC rules and regulations, if any, and subject to the following
provisions:
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(1)
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The
Custodian may keep securities of each Fund in a Securities System provided
that such securities are represented in an account (“Account”) of the
Custodian in the Securities System which shall not include any assets of
the Custodian other than assets held as a fiduciary, custodian or
otherwise for customers;
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(2)
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The
records of the Custodian with respect to securities of the Funds which are
maintained in a Securities System shall identify by book-entry those
securities belonging to each Fund;
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(3)
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The
Custodian shall pay for securities purchased for the account of each Fund
upon (i) receipt of advice from the Securities System that such securities
have been transferred to the Account, and (ii) the making of an entry on
the records of the Custodian to reflect such payment and transfer for the
account of the Fund. The Custodian shall transfer securities
sold for the account of a Fund upon (i) receipt of advice from the
Securities System that payment for such securities has been transferred to
the Account, and (ii) the making of an entry on the records of the
Custodian to reflect such transfer and payment for the account of the
Fund. Copies of all advices from the Securities System of
transfers of securities for the account of a Fund shall identify the Fund,
be maintained for the Fund by the Custodian and be provided to the Trust
at its request. Upon request, the Custodian shall furnish the
Trust confirmation of each transfer to or from the account of a Fund in
the form of a written advice or notice and shall furnish to the Trust
copies of daily transaction sheets reflecting each day’s transactions in
the Securities System for the account of a
Fund;
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(4)
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The
Custodian shall provide the Trust with any report obtained by the
Custodian on the Securities System’s accounting system, internal
accounting control and procedures for safeguarding securities deposited in
the Securities System;
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(5)
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The
Custodian shall have received the initial certificate, required by Section
9 hereof;
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(6)
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Anything
to the contrary in this Agreement notwithstanding, the Custodian shall be
liable to the Trust for any actual loss or damage (but not any
consequential or punitive damages) to a Fund resulting from use of the
Securities System by reason of any negligence, misfeasance or misconduct
of the Custodian or any of its agents or of any of its or their employees
or from failure of the Custodian or any such agent to enforce effectively
such rights as it may have against the Securities System; at the election
of the Trust, it shall be entitled to be subrogated to the rights of the
Custodian with respect to any claim against the Securities System or any
other person which the Custodian may have as a consequence of any such
loss or damage if and to the extent that a Fund has not been made whole
for any such loss or damage; and
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(7)
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The
authorization contained in this Section 2.12 shall not relieve the
Custodian from using reasonable care and diligence in making use of any
Securities System.
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2.13
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Segregated
Account. The Custodian shall upon receipt of Proper
Instructions establish and maintain a segregated account or accounts for
and on behalf of each Fund, into which account or accounts may be
transferred cash and/or securities, including securities maintained in an
account by the Custodian pursuant to Section 2.12 hereof, (i) in
accordance with the provisions of any agreement among the Trust, the
Custodian and a broker-dealer registered under the Exchange Act and a
member of the FINRA (or any futures commission merchant registered under
the Commodity Exchange Act), relating to compliance with the rules of the
Options Clearing Corporation and of any registered national securities
exchange (or the Commodity Futures Trading Commission or any registered
contract market), or of any similar organization or organizations,
regarding escrow or other arrangements in connection with transactions for
a Fund, (ii) for purpose of segregating cash or government securities in
connection with options purchased, sold or written for a Fund or commodity
futures contracts or options thereon purchased or sold for a Fund, (iii)
for the purpose of compliance by the Trust or a Fund with the procedures
required by any release or releases of the SEC relating to the maintenance
of segregated accounts by registered investment companies and (iv) for
other proper corporate purposes, but only, in
the case of clause (iv), upon receipt of, in addition to Proper
Instructions, a certified copy of a resolution of the Trustees signed by
an officer of the Trust and certified by the Secretary or an Assistant
Secretary, setting forth the purpose or purposes of such segregated
account, and declaring such purposes to be proper corporate
purposes.
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2.14
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Joint Repurchase
Agreements. Upon the receipt of Proper Instructions, the
Custodian shall deposit and/or maintain any assets of a Fund and any
affiliated funds which are subject to joint repurchase transactions in an
account established solely for such transactions for the Fund and its
affiliated funds. For purposes of this Section 2.14,
“affiliated funds” shall include all investment companies and their
portfolios for which subsidiaries or affiliates of The Huntington National
Bank serve as investment advisers, distributors or administrators in
accordance with applicable exemptive orders from the SEC. The
requirements of segregation set forth in Section 2.1 shall be deemed to be
waived with respect to such assets.
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2.15
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Ownership Certificates
for Tax Purposes. The Custodian shall execute ownership
and other certificates and affidavits for all federal, state and foreign
tax purposes in connection with receipt of income or other payments with
respect to securities of a Fund held by it and in connection with
transfers of securities.
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2.16
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Proxies. The
Custodian shall, with respect to the securities held hereunder, cause to
be promptly executed by the registered holder of such securities, if the
securities are registered otherwise than in the name of a Fund or a
nominee of a Fund, all proxies, without indication of the manner in which
such proxies are to be voted, and shall promptly deliver to the Trust such
proxies, all proxy soliciting materials and all notices relating to such
securities.
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2.17
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Communications
Relating to Fund Portfolio Securities. The Custodian
shall transmit promptly to the Trust and the investment adviser of the
Trust all written information (including, without limitation, pendency of
calls and maturities of securities and expirations of rights in connection
therewith and notices of exercise of call and put options written by the
Fund and the maturity of futures contracts purchased or sold by the Fund)
received by the Custodian from issuers of the securities being held for
the Trust. With respect to tender or exchange offers, the
Custodian shall transmit promptly to the Trust and the investment adviser
of the Trust all written information received by the Custodian from
issuers of the securities whose tender or exchange is sought and from the
party (or his agents) making the tender or exchange offer. If
the Trust or the investment adviser of the Trust desires to take action
with respect to any tender offer, exchange offer or any other similar
transaction, the Trust shall notify the Custodian in writing at least
three business days prior to the date on which the Custodian is to take
such action. However, the Custodian shall nevertheless exercise
its best efforts to take such action in the event that notification is
received three business days or less prior to the date on which action is
required. For securities which are not held in nominee name,
the Custodian will act as a secondary source of information and will not
be responsible for providing corporate action notification to the
Trust.
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2.18.
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Proper
Instructions. Proper Instructions as used throughout
this Agreement means a writing signed or initialed by one or more person
or persons as the Trustees shall have from time to time
authorized. Each such writing shall set forth the specific
transaction or type of transaction involved. Oral instructions
will be considered Proper Instructions if the Custodian reasonably
believes them to have been given by a person previously authorized in
Proper Instructions to give such instructions with respect to the
transaction involved (“Authorized Person”). The Trust shall
cause all oral instructions to be confirmed in writing. Upon
receipt of a certificate of the Secretary or an Assistant Secretary as to
the authorization by the Trustees accompanied by a detailed description of
procedures approved by the Trustees, Proper Instructions may include
communications directly between electromechanical or electronic devices
provided that the Trustees and the Custodian are satisfied that such
procedures afford adequate safeguards for a Fund’s
assets.
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2.19
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Actions Permitted
Without Express Authority. The Custodian may in its
discretion, without express authority from the
Trust:
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(1)
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make
payments to itself or others for minor expenses of handling securities or
other similar items relating to its duties under this Agreement, provided that
all such payments shall be accounted for to the Trust in such form that it
may be allocated to the affected
Fund;
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(2)
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surrender
securities in temporary form for securities in definitive
form;
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(3)
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endorse
for collection, in the name of a Fund, checks, drafts and other negotiable
instruments; and
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(4)
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in
general, attend to all non-discretionary details in connection with the
sale, exchange, substitution, purchase, transfer and other dealings with
the securities and property of each Fund except as otherwise directed by
the Trust.
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2.20
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Evidence of
Authority. The Custodian shall be protected in acting
upon any instructions, notice, request, consent, certificate or other
instrument or paper reasonably believed by it to be genuine and to have
been properly executed on behalf of a Fund. The Custodian may
receive and accept a certified copy of a vote of the Trustees of the Trust
as conclusive evidence (a) of the authority of any person to act in
accordance with such vote or (b) of any determination of or any action by
the Trustees pursuant to the Agreement and Declaration of Trust as
described in such vote, and such vote may be considered as in full force
and effect until receipt by the Custodian of written notice to the
contrary.
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2.21
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Notice to Trust by
Custodian Regarding Cash Movement. The Custodian will
provide timely notification to the Trust of any receipt of cash, income or
payments to the Trust and the release of cash or payment by the
Trust.
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3.
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Foreign
Sub-Custodian and Securities
Depositories
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3.1
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Foreign Sub-Custodian
and Securities Depositories. Unless instructed otherwise
by the Trust, the Custodian may deposit and/or maintain non-U.S.
Investments of the Trust of its Funds in any non-U.S. Securities System
provided such Securities System meets the requirements of an “eligible
securities depository” under Rule 17f-7 promulgated under the 1940 Act, or
any successor rule or regulation (“Rule 17f-7”) or which by order of the
Securities and Exchange Commission (“SEC”) is exempted
therefrom. Prior to the time that securities are placed with
such Securities System, but subject to the provisions of Section 3.3
below, the Custodian shall have prepared or obtained from a Sub-Custodian
an assessment of the custody risks associated with maintaining assets with
the Securities System and shall have established a system to monitor such
risks on a continuing basis in accordance with Section
3.4. Additionally, the Custodian may, from time to time,
appoint (a) any bank, trust company or other entity meeting the
requirements of an “eligible foreign custodian” under Rule 17f-5 or which
by order of the Securities and Exchange Commission is exempted therefrom,
or (b) any bank as defined in Section 2(a)(5) of the 1940 Act meeting the
requirements of a custodian under Section 17(f) of the 1940 Act and the
rules and regulations thereunder, to act on behalf of the Trust or its
Funds as a Foreign sub-custodian (“Foreign Sub-Custodian) for purposes of
holding Investments of the Trust and/or its Funds outside the United
States.
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3.2
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Review of Foreign
Sub-Custodians. From time to time, the Custodian may
agree to perform certain reviews of Foreign Sub-Custodians at the Trust’s
request. In such event, the Custodian’s duties and obligations
with respect to this review will be performed in accordance with the terms
of the attached 17f-5 Delegation Schedule to this
Agreement.
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3.3
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Approval of Foreign
Sub-Custodians. Unless and except to the extent that the
Trust has requested and the Custodian has accepted delegation of the
appointment of Foreign Sub-Custodians, the Custodian shall, prior to the
appointment of any Foreign Sub-Custodian for purposes of holding
Investments of the Trust or its Funds outside the United States, obtain
written confirmation of the approval of the Trust with respect to the
identity of such Foreign Sub-Custodian, such approval to be signed by an
Authorized Person. A Proper Instruction to open an account in a
given country shall comprise authorization by the Trust for the Custodian
to hold assets in such country in accordance with the terms of this
Agreement. The Foreign Sub-Custodian shall not be required to
make independent inquiry as to the authorization of the Trust or its Funds
to invest in such country.
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3.4
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Monitoring and Risk
Assessment of Securities Depositories. Prior to the
placement of any assets of the Trust or its Funds with a non-U.S.
Securities System, the Custodian: (a) shall provide to the Trust an
assessment of the custody risks associated with maintaining assets within
such Securities System; and (b) shall have established a system to monitor
the custody risks associated with maintaining assets with such Securities
System on a continuing basis and to promptly notify the Trust of any
material changes in such risk. In performing its duties under
this subsection, the Custodian shall use reasonable care and may rely on
such reasonable sources of information as may be available including but
not limited to: (i) published ratings; (ii) information supplied by a
Foreign Sub-Custodian that is a participant in such Securities System;
(iii) industry surveys or publications; (iv) information supplied by the
Foreign Sub-Custodian itself, by its auditors (internal or external) or by
the relevant foreign financial regulatory authority. It is
acknowledged that information procured through some or all of these
sources may not be independently verifiable by the Custodian and that
direct access to the Securities System is limited under most
circumstances. Accordingly, the Custodian shall not be
responsible for errors or omissions in its duties hereunder provided that
it has performed its monitoring and assessment duties with reasonable
care. The risk assessment shall be provided to the Trust by
such means as the Custodian shall reasonably establish. Advices
of material change in such assessment may be provided by the Custodian in
the manner established as customary between the Trust and the
Custodian.
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3.5
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Responsibility for
Foreign Sub-Custodians. Except as provided in the last
sentence of this Section 3.5, the Custodian shall be liable to the Trust
for any loss or damage to the Trust caused by or resulting to be
negligence, gross negligence or willful misconduct in accordance with the
terms of the relevant Foreign Sub-Custodian agreement under the laws,
circumstances and practices prevailing in the place where the act or
omission occurred. The liability of the Custodian in respect of
the countries and Foreign Sub-Custodians so designated by the Custodian,
from time to time shall be subject to the additional condition that the
Custodian actually recovers such loss or damage from the Foreign
Sub-Custodian.
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3.6
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New
Countries. The Trust shall be responsible for informing
the Custodian sufficiently in advance of the proposed investment which is
to be held in a country in which no Foreign Sub-Custodian is authorized to
act in order that the Custodian shall, if it deems appropriate to do so,
have sufficient time to establish a sub-custodial arrangement in
accordance herewith.
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3.7
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Market
Conditions. Notwithstanding any provision of this
Agreement to the contrary, settlement and payment for Foreign Assets
received for the account of the Funds and delivery of Foreign Assets
maintained for the account of the Funds may be effected in accordance with
the customary established securities trading or processing practices and
procedures in the country or market in which the transaction occurs,
including, without limitation, delivering Foreign Assets to the purchaser
thereof or to a dealer thereof (or an agent for such purchaser or dealer)
with the expectation of receiving later payment for such Foreign Assets
from such purchaser or dealer.
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The
Custodian shall provide to the Board the information with respect to
custody practices in countries in which the Custodian employs a Foreign
Sub-Custodian described on Exhibit C hereto at the time or times set forth
on such Exhibit. The Custodian may revise Exhibit C from time
to time, provided that no such revision shall result in the Board being
provided with substantively less information than had been previously
provided hereunder.
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3.8
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Liability of Foreign
Sub-Custodian. Each agreement pursuant to which the
Custodian employs a Foreign Sub-Custodian shall require the Foreign
Sub-Custodian to exercise reasonable care in the performance of its duties
in accordance with the standards of the market where the service is
provided, and to indemnify, and hold harmless, the Custodian from and
against any loss, damage, cost, expense, liability or claim arising out of
or in connection with the Foreign Sub-Custodian’s failure to exercise
reasonable care in the performance of such obligations. At the
Trust’s election, the Funds shall be entitled to be subrogated to the
rights of the Custodian with respect to any claims against a Foreign
Sub-Custodian as a consequence of any such loss, damage, cost, expense,
liability or claim if and to the extent that the Funds have not been made
whole for any such loss, damage, cost, expense, liability or
claims.
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3.9
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Currency and Related
Risks. The Trust bears risks of holding or transacting
in any currency, including any xxxx to market exposure associated with a
foreign exchange transaction undertaken with or through the
Custodian. Neither the Custodian nor any Foreign Sub-Custodian
shall be liable for any loss or damage arising from the applicability of
any law or regulation now or hereafter in effect, or from the occurrence
of any event, which may delay or affect the transferability,
convertibility or availability of any currency in the country (a) in which
Fund bank accounts are maintained or (b) in which such currency is issued,
and in no event shall the Custodian or any Foreign Sub-Custodian be
obligated to make payment of a deposit denominated in a currency during
the period during which its transferability, convertibility or
availability has been affected by any such law, regulation or
event. Without limiting the generality of the foregoing,
neither the Custodian nor any Foreign Sub-Custodian shall be required to
repay any deposit made at a foreign branch of either the Custodian or any
Foreign Sub-Custodian if such branch cannot repay any deposit made at a
foreign branch of either the Custodian or any Foreign Sub-Custodian if
such branch cannot repay the deposit due to a cause for which the
Custodian would not be responsible in accordance with the terms of Section
9 of this Agreement unless the Custodian or such Foreign Sub-Custodian
expressly agrees in writing to repay the deposit under such
circumstances. All currency transactions in any account opened
pursuant to this Agreement are subject to exchange control regulations of
the United States and of the country where such currency is the lawful
currency or where the account is maintained. Any taxes, costs,
charges or fees imposed on the convertibility of a currency held by the
Trust shall be for the account of the
Trust.
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3.10
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Foreign Exchange
Transactions. The Custodian shall, subject to the terms
of this Section, settle foreign exchange transactions (including
contracts, futures, options and options on futures) on behalf and for the
account to the Trust with such currency brokers or banking institutions,
including Sub-Custodians, as the Trust may direct pursuant to Proper
Instructions. The obligations of the Custodian in respect of
all foreign exchange transactions shall be contingent on the free,
unencumbered transferability of the currency transacted on the actual
settlement date of the
transactions.
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3.10.1
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Third Party Foreign
Exchange Transactions. The Custodian shall process foreign exchange
transactions (including without limitation contracts, futures, options and
options on futures), where any third party acts as principal counterparty
to the Trust on the same basis, if any, that it performs duties as agent
for the Trust with respect to any other of the Trust’s
investments. Accordingly, the Custodian shall only be
responsible for delivering or receiving currency on behalf of the Trust in
respect of such contracts pursuant to Proper Instructions. The
Custodian shall not be responsible for the failure of any counterparty
(including any Sub-Custodian) in such agency transaction to perform its
obligations thereunder. The Custodian (a) shall transmit cash
and Proper Instructions to and from the currency broker or banking
institution with which a foreign exchange contract or option has been
executed pursuant hereto, (b) may make free outgoing payments of cash in
the form of Dollars or foreign currency without receiving confirmation of
a foreign exchange contract or option or confirmation that the
countervalue currency completing the foreign exchange contract has been
delivered or received or that the option has been delivered or received,
(c) may, in connection with cash payments made to third party currency
broker/dealers for settlement of the Trust’s foreign exchange spot or
forward transactions, foreign exchange swap transactions and similar
foreign exchange transactions, process settlements using the banking
facilities selected by the Custodian from time to time according to such
banking facilities standard terms, and (d) shall hold all confirmations,
certificates and other documents and agreements received by the Custodian
and evidencing or relating to such foreign exchange transactions in
safekeeping. The Trust accepts full responsibility for its use
of third-party foreign exchange dealers and for execution of said foreign
exchange contracts and options and understands that the Trust shall be
responsible for any and all costs and interest charges which may be
incurred by the Trust or the Custodian as a result of the failure or delay
of third parties to deliver foreign
exchange.
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3.11
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Bank
Accounts. Where the Custodian is unable to maintain, or
market practice does not facilitate the maintenance of, cash on the books
of the Custodian, a bank account or bank accounts shall be opened and
maintained outside the United States on behalf of a Fund with a Foreign
Sub-Custodian. All accounts referred to in this Section shall
be subject only to draft or order by the Custodian (or, if applicable,
such Foreign Sub-Custodian) acting pursuant to the terms of this Agreement
to hold cash received by or from or for the account of the
Fund. Cash maintained on the books of the Custodian (including
its branches, subsidiaries and affiliates), regardless of currency
denomination, is maintained in bank accounts established under, and
subject to the laws of, the State of
Ohio.
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3.12
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Proxies. With
respect to Foreign Assets, the Custodian will use reasonable commercial
efforts to facilitate the exercise of voting and other shareholder rights,
subject always to the laws, regulations and practical constraints that may
exist in the country where such securities are issued. The
Trust acknowledges that local conditions, including lack of regulation,
onerous procedural obligations, lack of notice and other factors may have
the effect of severely limiting the ability of the Trust to exercise
shareholder rights.
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3.13
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Corporate
Actions. With respect to Foreign Assets, the Custodian
shall not be liable for any untimely exercise of any tender, exchange or
other right or power in connection with foreign securities or other
property of the Funds at any time held by it unless (i) the Custodian or
the respective Foreign Sub-Custodian is in actual possession of such
foreign securities or property and (ii) the Custodian receives Proper
Instructions with regard to the exercise of any such right or powers, and
both (i) and (ii) occur at least three business days prior to the date on
which the Custodian is to take action to exercise such right or
power.
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4. Records
The Custodian shall create and maintain
all records relating to its activities and obligations under this Agreement in
such manner as will meet the obligations of the Trust and the Funds under the
1940 Act, with particular attention to Section 31 thereof and Rules 31a-1 and
31a-2 thereunder or any successor provisions, and specifically including
identified cost records used for tax purposes. All such records shall
be the property of the Trust and shall at all times during the regular business
hours of the Custodian be open for inspection by duly authorized officers,
employees or agents of the Trust and upon notice to the Trust, employees and
agents of the SEC. In the event of termination of this Agreement, the
Custodian will deliver all such records to the Trust to a successor Custodian,
or to such other person as the Trust may direct. The Custodian shall
supply daily to the Trust a tabulation of securities owned by a Fund and held by
the Custodian and shall, when requested to do so by the Trust and for such
compensation as shall be agreed upon between the Trust and the Custodian,
include certificate numbers in such tabulations. In addition, the
Custodian shall electronically transmit daily to the Trust information
pertaining to security trading and other investment activity and all other cash
activity of a Fund.
5. Opinion
of Trust’s Independent Public Accountants
The Custodian shall take all reasonable
action to assist the Trust in obtaining from year to year favorable opinions
from independent public accountants with respect to the Custodian’s activities
hereunder in connection with the preparation of the Trust’s registration
statement, periodic reports, or any other reports to the SEC and with respect to
any other requirements of the SEC.
6. Reports
to Trust by Independent Public Accountants
The Custodian shall provide the Trust,
at such times as the Trust may reasonably require, with reports by independent
public accountants for each Fund on the accounting system, internal accounting
control and procedures for safeguarding securities, futures contracts and
options on futures contracts, including securities deposited and/or maintained
in a Securities System, relating to the services provided by the Custodian for
the Trust under this Agreement; such reports shall be of sufficient scope and in
sufficient detail, as may reasonably be required by the Trust, to provide
reasonable assurance that any material inadequacies would be disclosed by such
examination and, if there are no such inadequacies, the reports shall so
state.
7. Compensation
of Custodian
The Custodian shall be entitled to
reasonable compensation for its services and expenses as Custodian, as agreed
upon from time to time between the Trust and the Custodian, and as reflected on
Appendix D attached hereto.
8. Responsibility
of Custodian
The Custodian shall be held to a
standard of reasonable care in carrying out the provisions of this Agreement;
provided, however, that the Custodian shall be held to any higher standard of
care which would be imposed upon the Custodian by any applicable law or
regulation if such above stated standard of reasonable care was not part of this
Agreement. The Custodian shall be entitled to rely on and may act
upon advice of counsel (who may be counsel for the Trust) on all matters, and
shall be without liability for any action reasonably taken or omitted pursuant
to such advice, provided that such action is not in violation of applicable
federal or state laws or regulations, and is in good faith and without
negligence. Subject to the limitations set forth in Section 16
hereof, the Custodian shall be kept indemnified by the Trust but only from the
assets of the Fund involved in the issue at hand and be without liability for
any action taken or thing done by it that is reasonably related to its
responsibility to carry out the terms and provisions of this Agreement in
accordance with the above standards.
In order that the indemnification
provisions contained in this Section 8 shall apply, however, it is understood
that if in any case the Trust may be asked to indemnify or save the Custodian
harmless, the Trust shall be fully and promptly advised of all pertinent facts
concerning the situation in question, and it is further understood that the
Custodian will use all reasonable care to identify and notify the Trust promptly
concerning any situation which presents or appears likely to present the
probability of such a claim for indemnification. The Trust shall have
the option to defend the Custodian against any claim which may be the subject of
this indemnification, and in the event that the Trust so elects it will so
notify the Custodian and thereupon the Trust shall take over complete defense of
the claim, and the Custodian shall in such situation initiate no further legal
or other expenses for which it shall seek indemnification under this
Section. The Custodian shall in no case confess any claim or make any
compromise in any case in which the Trust will be asked to indemnify the
Custodian except with the Trust’s prior written consent.
Notwithstanding the foregoing, the
responsibility of the Custodian with respect to redemptions effected by check
shall be in accordance with a separate Agreement entered into between the
Custodian and the Trust.
If the Trust requires the Custodian to
take any action with respect to securities, which action involves the payment of
money or which action may, in the reasonable opinion of the Custodian, result in
the Custodian or its nominee assigned to a Fund being liable for the payment of
money or incurring liability of some other form, the Custodian may request the
Trust, as a prerequisite to requiring the Custodian to take such action, to
provide indemnity to the Custodian in an amount and form satisfactory to the
Custodian.
Subject to the limitations set forth in
Section 16 hereof, the Trust agrees to indemnify and hold harmless the Custodian
and its nominee from and against all taxes, charges, expenses, assessments,
claims and liabilities (including reasonable counsel fees) (referred to herein
as authorized charges) incurred or assessed against it or its nominee in
connection with the performance of this Agreement, except such as may arise from
it or its nominee’s own failure to act in accordance with the standard of care
set forth herein or any higher standard of care which would be imposed upon the
Custodian by any applicable law or regulation if such above-stated standard of
care were not part of this Agreement. To secure any authorized
charges and any advances of cash or securities made by the Custodian to or for
the benefit of a Fund for any purpose which results in the Fund incurring an
overdraft at the end of any business day or for extraordinary or emergency
purposes during any business day, the Trust hereby grants to the Custodian a
security interest in and pledges to the Custodian securities held for the Fund
by the Custodian in an amount not to exceed 10 percent of the Fund’s gross
assets, the specific securities to be designated in writing from time to time by
the Trust or the Fund’s investment adviser. Should the Trust fail to
make such designation, or should it instruct the Custodian to make advances
exceeding the percentage amount set forth above and should the Custodian do so,
the Trust hereby agrees that the Custodian shall have a security interest in all
securities or other property purchased for a Fund with the advances by the
Custodian, which securities or property shall be deemed to be pledged to the
Custodian, and the written instructions of the Trust instructing their purchase
shall be considered the requisite description and designation of the property so
pledged for purposes of the requirements of the Uniform Commercial
Code. Should the Trust fail to cause a Fund to repay promptly any
authorized charges or advances of cash or securities, subject to the provision
of the second paragraph of this Section 8 regarding indemnification, the
Custodian shall be entitled to use available cash and to dispose of pledged
securities and property as is necessary to repay any such advances.
9. Effective
Period, Termination and Amendment
This Agreement shall become effective
as of its execution, shall continue in full force and effect until terminated as
hereinafter provided, may be amended at any time by mutual agreement of the
parties hereto and may be terminated by either party by an instrument in writing
delivered or mailed, postage prepaid, to the other party, such termination to
take effect not sooner than sixty (60) days after the date of such delivery or
mailing; provided, however
that the Custodian shall not act under Section 2.12 hereof in the absence of
receipt of an initial certificate of the Secretary or an Assistant Secretary
that the Trustees of the Trust have approved this Agreement; provided further,
however, that the Trust shall not amend or terminate this Agreement in
contravention of any applicable federal or state regulations, or any provision
of the Agreement and Declaration of Trust, and further provided, that the Trust
may at any time by action of its Board (i) substitute another bank or trust
company for the Custodian by giving notice as described above to the Custodian,
or (ii) immediately terminate this Agreement in the event of the appointment of
a conservator or receiver for the Custodian by the Comptroller of the Currency
or upon the happening of a like event at the direction of an appropriate
regulatory agency or court of competent jurisdiction.
Upon termination of the Agreement, the
Trust shall pay to the Custodian such compensation as may be due as of the date
of such termination and shall likewise reimburse the Custodian for its
reasonable costs, expenses and disbursements incurred in connection with its
performance of this Agreement through the date of termination.
10. Successor
Custodian
If a successor custodian shall be
appointed by the Trustees of the Trust, the Custodian shall, upon termination,
deliver to such successor custodian at the office of the Custodian, duly
endorsed and in the form for transfer, all securities then held by it hereunder
for each Fund and shall transfer to separate accounts of the successor custodian
all of each Fund’s securities held in a Securities System.
If no such successor custodian shall be
appointed, the Custodian shall, in like manner, upon receipt of a certified copy
of a vote of the Trustees of the Trust, deliver at the office of the Custodian
and transfer such securities, funds and other properties in accordance with such
vote.
In the event that no written order
designating a successor custodian or certified copy of a vote of the Trustees
shall have been delivered to the Custodian on or before the date when such
termination shall become effective, then the Custodian shall have the right to
deliver to a bank or trust company, which is a “bank” as defined in the 1940
Act, of its own selection, having an aggregate capital, surplus, and undivided
profits, as shown by its last published report, of not less than $100,000,000,
all securities, funds and other properties held by the Custodian and all
instruments held by the Custodian relative thereto and all other property held
by it under this Agreement for each Fund and to transfer to separate accounts of
such successor custodian all of each Fund’s securities held in any Securities
System. Thereafter, such bank or trust company shall be the successor
of the Custodian under this Agreement.
In the event that securities, funds and
other properties remain in the possession of the Custodian after the date of
termination hereof owing to failure of the Trust to procure the certified copy
of the vote referred to or of the Trustees to appoint a successor custodian, the
Custodian shall be entitled to fair compensation for its services during such
period as the Custodian retains possession of such securities, funds and other
properties and the provisions of this Agreement relating to the duties and
obligations of the Custodian shall remain in full force and effect.
11. Interpretive
and Additional Provisions
In connection with the operation of
this Agreement, the Custodian and the Trust may from time to time agree on such
provisions interpretive of or in addition to the provisions of this Agreement as
may in their joint opinion be consistent with the general tenor of this
Agreement. Any such interpretive or additional provisions shall be in
a writing signed by both parties and shall be annexed hereto, provided that no such
interpretive or additional provisions shall contravene any applicable federal or
state regulations or any provision of the Agreement and of Trust. No
interpretive or additional provisions made as provided in the preceding sentence
shall be deemed to be an amendment of this Agreement.
12. Ohio
Law to Apply
This Agreement shall be construed and
the provisions thereof interpreted under and in accordance with the laws of the
state of Ohio.
13. Non-Public
Information
1. The
Trust and Custodian hereby acknowledge that the Trust may disclose shareholder
non-public personal information (“NPI”) to the Custodian as agent to the Trust
and solely in furtherance of fulfilling the Custodian’s contractual obligations
under the Agreement in the ordinary court of business to support the Trust and
its shareholders.
2. The
Custodian hereby agrees to be bound to use and redisclose such NPI only for the
limited purpose of fulfilling its duties and obligations under the Agreement,
for law enforcement and miscellaneous purposes as permitted in 17 CFR §§ 248.15,
or in connection with joint marketing arrangements that the Trust may establish
with the Custodian in accordance with the limited exception set forth in 17 CR §
248.13.
3. The
Custodian further represents and warrants that, in accordance with 17 CR §
248.30, it has implemented, and will continue to carry out for the term of the
Agreement, policies and procedures reasonably designed to:
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insure
the security and confidentiality of records and NPI of Trust
customers,
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protect
against any anticipated threats or hazards to the security or integrity of
Trust customer records and NPI and
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protect
against unauthorized access to or use of such Trust customer records or
NPI that could result in substantial harm or inconvenience to any Fund
customer.
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4. The
Custodian Provider may redisclose Section 248.13 NPI only to: (a) the Trust and
affiliated persons of the Trust (“Trust Affiliates”); (b) affiliated persons of
the Custodian to the extent permitted under the original receipt); (c) a third
party not affiliated with the Custodian (“Nonaffiliated Third Party”) under the
service and processing (§248.14) or miscellaneous (§248.15) exceptions, but only
in the ordinary course of business to carry out the activity covered by the
exception under which the Custodian received the information in the first
instance; and (d) a Nonaffiliated Third Party under the service provider and
joint marketing exception (§248.13), provided the Custodian enters into a
written contract with the Nonaffiliated Third Party that prohibits the
Nonaffiliated Third Party from disclosing or using the information other than to
carry out the purposes for which the Trust disclosed the information in the
first instance.
5. The
Custodian may redisclose Section 248.14 NPI and Section 248.15 NPI to: (a) the
Trust and Trust Affiliates; (b) Custodian Affiliates (which in turn may disclose
the information to the same extent permitted under the original receipt); and
(c) a Nonaffiliated Third Party to whom the Trust might lawfully have disclosed
NPI directly.
6. The
Custodian is obligated to maintain beyond the termination date of the Agreement
the confidentiality of any NPI it receives from the Trust in connection with the
Agreement or any joint marketing arrangement, and hereby agrees that this
Amendment shall survive such termination.
14. Notices
Except as otherwise specifically
provided herein, Notices and other writings delivered or mailed postage prepaid
to the Trust c/o Xxxxxx Xxxxxx, 0000 Xxxxxxx Xxxxxx, 00xx
Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Secretary, or to the Custodian
at Huntington Center, 00 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, or to such
other address as the Trust or the Custodian may hereafter specify, shall be
deemed to have been properly delivered or given hereunder to the respective
address.
15. Counterparts
This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original.
16. Limitations
of Liability
The Custodian is expressly put on
notice of the limitation of liability as set forth in Article VII of the
Agreement and Declaration of Trust and agrees that the obligations and
liabilities assumed by the Trust and any Fund pursuant to this Agreement,
including, without limitation, any obligation or liability to indemnify the
Custodian pursuant to Section 8 hereof, shall be limited in any case to the
relevant Fund and its assets and that the Custodian shall not seek satisfaction
of any such obligation from the shareholders of the relevant Fund, from any
other Fund or its shareholders or from the Trustees, Officers, employees or
agents of the Trust, or any of them. In addition, in connection with
the discharge and satisfaction of any claim made by the Custodian against the
Trust, for whatever reasons, involving more than one Fund, the Trust shall have
the exclusive right to determine the appropriate allocations of liability for
any such claim between or among the Trust.
17. Prior
Agreement Terminated and Superseded
The Custodian Agreement dated June 23,
2006 between the parties hereto (“Prior Agreement”) is hereby terminated and
superseded by this Agreement. The parties hereto mutually agree to
waive the notice of termination provisions set forth in Section 9 of the Prior
Agreement. Accordingly, the Prior Agreement will terminate on even
date herewith.
IN WITNESS WHEREOF, each of
the parties has caused this instrument to be executed in its name and behalf by
its duly authorized representative as of the 26th day
of May, 2009.
THE
HUNTINGTON FUNDS
By: /s/ Xxxx
XxXxxxxx
Name: Xxxx
XxXxxxxx
Title: Vice
President
THE
HUNTINGTON NATIONAL BANK
By: /s/ Xxx
Xxxx
Name: Xxx
Xxxx
Title: Vice
President
